PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

 

VICKI KOCH, a/k/a Vicki Butrick, 

 Plaintiff - Appellant, 

v. 

CITY OF DEL CITY, a municipal 

corporation; JOHN BEECH, an 

individual, 

Defendants - Appellees. 

 No. 10-6105 

 

Appeal from the United States District Court 

 for the Western District of Oklahoma 

(D.C. No. 07-cv-00371-D)

 

Valerie Williford, Oklahoma City, Oklahoma, for Plaintiff-Appellant. 

Randall J. Wood (Robert S. Lafferrandre with him on the brief), of Pierce Couch 

Hendrickson Baysinger & Green, LLP, Oklahoma City, Oklahoma, for DefendantsAppellees. 

 

Before BRISCOE, Chief Judge, EBEL, and TYMKOVICH, Circuit Judges. 

EBEL, Circuit Judge. 

 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 2, 2011

Elisabeth A. Shumaker 

Clerk of Court
2 

Beginning in 2004, Plaintiff-Appellant Vicki Koch and her parents assumed 

control over the property and care of an elderly woman, Gladys Lance. Ms. Lance’s 

niece became concerned about her aunt’s welfare, and in September 2005, when she 

could no longer locate Ms. Lance, she obtained an order from an Oklahoma state court 

appointing her as Ms. Lance’s special guardian. Several days later, Defendant-Appellant 

John Beech, an officer of the Del City Police Department, was told by his supervisor that 

a “pickup” order had been issued for Ms. Lance, and that he should go to Ms. Koch’s 

residence to check on Ms. Lance. When he did, he encountered Ms. Koch on her front 

doorstep. He asked Ms. Koch where Ms. Lance was located, but Ms. Koch refused to tell 

him, instead telling him to leave her property and talk to her attorney. When Ms. Koch 

persisted in her non-responsiveness and turned to leave, Officer Beech arrested her for 

obstruction. During the arrest, a scuffle ensued, which concluded when Officer Beech 

brought Ms. Koch to the ground and handcuffed her. 

Ms. Koch sued Officer Beech and Del City under 42 U.S.C. § 1983, alleging, 

inter alia, claims for false arrest and excessive force. The district court granted summary 

judgment in favor of the defendants, concluding that Officer Beech was entitled to 

qualified immunity. Ms. Koch now appeals that decision. The appellees, in turn, 

challenge our jurisdiction to hear Ms. Koch’s appeal. As discussed below, we conclude 

that we have jurisdiction under 28 U.S.C. § 1291, and exercising that jurisdiction, we 

affirm. 
3 

I. BACKGROUND 

A. Factual Background 

1. The relationship between Vicki Koch and Gladys Lance 

At all relevant times, Ms. Koch was a resident of Del City, Oklahoma, while Ms. 

Lance resided in Oklahoma City. Although the parties dispute the nature of their 

relationship, beginning at least in 2004, Ms. Koch and her parents, Hugh and Lucille 

Butrick, acted in some sort of care-giving capacity to Ms. Lance. For instance, on 

January 5, 2004, Ms. Lance signed an affidavit purportedly revoking power of attorney 

from her niece, Patricia Loar (who resided in Kansas), and granting power of attorney to 

Ms. Koch and the Butricks. On January 19, 2004, Ms. Lance signed another affidavit in 

which she purported to name Ms. Koch and the Butricks as her “attorneys-in-fact” and 

the “conservators or guardians” of her property. (Aplt. App’x at 105, 111.) On July 29, 

2005, Ms. Lance signed a document appointing Hugh Butrick as her guardian, and Ms. 

Koch as her successor guardian, in the event she became incapacitated. 

On August 29, 2005, Ms. Lance signed a typewritten document in which she, in 

return for Ms. Koch’s alleged care-giving services, agreed to pay Ms. Koch $1,500 per 

month. On September 1, 2005, Hugh Butrick sold Ms. Lance’s home, and several days 

later he placed Ms. Lance in a nursing home. 

2. The order appointing Loar as Special Guardian 

Beginning at least in August 2005, the Oklahoma Department of Human Services 

(“DHS”) began to have concerns about Ms. Lance’s welfare. At some point, Ms. Loar 
4 

came to share these concerns. It appears that by the time Butrick placed Ms. Lance in a 

nursing home, however, neither DHS nor Ms. Loar could locate Ms. Lance. 

Accordingly, Ms. Loar filed a petition in the District Court of Oklahoma County seeking 

to be appointed as “Special Guardian” to Ms. Lance and her property. (Id. at 242.) 

On September 8, 2005, the court granted Ms. Loar’s petition, finding that there 

was “imminent danger that the health or safety and the financial resources of Gladys 

Lance [would] be seriously impaired and dissipated unless an immediate appointment of 

a special guardian occur[ed].” (Id. (the “Order”).) The court also ordered Ms. Koch or 

her family to “immediately tell DHS, Petitioner and Gladys Lance’s family (relatives) the 

whereabouts of Gladys Lance and why she was removed from her home.” (Id.) In order 

to facilitate Ms. Loar’s search efforts, the court granted her the “authority to file missing 

persons police reports, obtain law enforcement assistance, and do that which is necessary 

to find the whereabouts of Gladys Lance.” (Id.) The court also set forth Ms. Loar’s 

powers as Special Guardian, including the power to “take action to prevent the transfer of 

[Ms. Lance’s] property, including her home.” (Id.) 

 On September 9, 2005, a copy of the Order was placed on Ms. Koch’s door. On 

the same day, Ms. Koch’s attorney, Joyce Good, received a letter from DHS stating that it 

needed to hear from Ms. Koch “regarding the whereabouts of Gladys Lance” and asking 

to avoid “the need for involvement by the Sheriff’s office.” (Id. at 277.) Ms. Good 

informed Ms. Koch that day that DHS was looking for Ms. Lance. Despite this notice 

and the fact that Ms. Koch knew at that time that her father had placed Ms. Lance in a 
5 

nursing home, Ms. Koch apparently did not convey Ms. Lance’s whereabouts to Ms. 

Good, Ms. Loar, or DHS. 

3. Ms. Koch’s arrest 

On September 13, 2005, Officer Beech was told during his shift “lineup” that a 

“pick-up order” was in place for Ms. Lance, and that he should periodically check Ms. 

Koch’s residence to see if anyone was there. (Id. at 65.) If so, Officer Beech was 

charged with making contact with that person in order to check on the welfare of Ms. 

Lance, who was “supposed to be at th[e] residence.” (Id.) The only information Officer 

Beech received about Ms. Koch and Ms. Lance was what he was told during this shift 

lineup. 

Later that evening, Officer Beech went to Ms. Koch’s residence and saw Ms. 

Koch standing outside of her home. Officer Beech approached Ms. Koch and asked her 

if she knew where Ms. Lance was located. Ms. Koch told him that he should not be on 

her property and that he should talk to her attorney. Officer Beech told her that he had an 

emergency pickup order for Ms. Lance and that if Ms. Koch did not tell him the 

whereabouts of Ms. Lance he would arrest Ms. Koch for obstruction. Ms. Koch again 

told him to leave her property. Shortly thereafter, Officer Beech informed Ms. Koch that 

she was under arrest for obstruction, and as Ms. Koch tried to enter her residence, Officer 

Beech grabbed her arm. A struggle ensued, they went to the ground, and Officer Beech 

placed handcuffs on Ms. Koch. At some point during the encounter, Ms. Koch told 

Officer Beech that Ms. Lance was in a nursing home in the town of Choctaw or Harrah. 
6 

Ms. Koch alleges that Officer Beech used excessive force in arresting her, and that she 

sustained injuries as a result.1

 

Ms. Koch was charged with assault and battery upon a police officer and with 

obstruction. After the arrest, Ms. Lance was located in a nursing home in Choctaw. In 

February 2006, the district attorney dropped the charges against Ms. Koch. 

B. Procedural Background 

On March 8, 2007, Ms. Koch sued Officer Beech and Del City in Oklahoma state 

court, alleging various claims under 42 U.S.C. § 1983 as well as state-law claims for 

assault, battery, and false arrest under common law. On March 29, 2007, the case was 

removed to the United States District Court for the District of Oklahoma. 

1. Ms. Koch’s discovery motions 

On January 4, 2008, the discovery cut-off date, Ms. Koch filed a motion to 

continue the trial date and associated pretrial deadlines. The district court granted Ms. 

Koch’s motion in part, extending the discovery deadline for thirty days for the limited 

 1

 On appeal, the parties dispute numerous facts related to the encounter. Officer 

Beech alleges that Ms. Koch “was immediately confrontational with [him], ordering him 

off her property in an expletive-laced excoriation.” (Aple. Br. at 23 n.2.) Officer Beech 

further alleges that when he placed Ms. Koch under arrest, she immediately punched him 

in the chest. Ms. Koch, conversely, contends that Officer Beech began to wring her arms 

before she told him about Ms. Lance, and that Officer Beech told Ms. Koch that if she did 

not tell him where Ms. Lance was located he would beat it out of her. Ms. Koch also 

contends that she did not resist arrest and feared for her safety. However, Officer 

Beech’s contentions are unnecessary to reach our conclusion, and Ms. Koch’s 

contentions are either controverted by her own testimony or were not adequately raised 

below. Thus, these contentions have no bearing on this appeal. 
7 

purpose of allowing Ms. Koch to depose a police supervisor. Following this deposition, 

Ms. Koch filed another motion to extend the discovery deadline, but the district court 

denied this motion on August 18, 2008. 

2. The defendants’ summary judgment motions 

On December 5, 2007, Officer Beech and Del City filed separate motions for 

summary judgment. On March 29, 2010, the district court granted those motions, 

concluding that Officer Beech was entitled to qualified immunity on Ms. Koch’s federal 

claims and that Ms. Koch’s state-law claims against Officer Beech and federal claims 

against Del City failed as a matter of law. The court also declined to exercise 

supplemental jurisdiction over the remaining state-law claims against Del City, and 

remanded those claims back to the state court. 

II. APPELLATE JURISDICTION 

Ms. Koch appeals from (1) the district court’s March 29, 2010 order granting 

summary judgment in favor of Officer Beech and declining to exercise supplemental 

jurisdiction over the remaining state-law claims against Del City, and (2) the district 

court’s order denying in part her motion to continue. However, on June 19, 2010, the 

defendants filed in this Court a motion to dismiss Ms. Koch’s appeal for lack of 

jurisdiction. As discussed below, we conclude that we have jurisdiction over Ms. Koch’s 

appeal and therefore deny the defendants’ motion to dismiss. 
8 

A. The Summary Judgment Order 

The defendants argue that the district court’s order granting summary judgment in 

their favor is not a final appealable order because the court remanded Ms. Koch’s statelaw claims to state court without directing entry of a final judgment under Federal Rule 

of Civil Procedure 54(b). Thus, according to the defendants, the litigation has not been 

fully terminated for the purposes of 28 U.S.C. § 1291. The defendants are mistaken. 

28 U.S.C. § 1291 provides in relevant part that the United States Courts of Appeal 

“shall have jurisdiction of appeals from all final decisions of the district courts of the 

United States.” “A decision is ‘final’ when it ends the litigation on the merits and leaves 

nothing for the court to do but execute the judgment.” SEC v. Merrill Scott & Assocs., 

Ltd., 600 F.3d 1262, 1270 (10th Cir. 2010) (internal quotation marks omitted). In cases 

involving multiple claims or parties, a district court’s order “that adjudicates fewer than 

all the claims or the rights and liabilities of fewer than all the parties” is not a final 

decision unless the district court directs entry of a final judgment as to one or more 

claims or parties under Rule 54(b), which then becomes final as to those claims or 

parties. Fed. R. Civ. P. 54(b). However, where a district court resolves all federal claims 

and remands the remaining state-law claims to state court, there is nothing left to 

adjudicate, and thus an appellate court has jurisdiction even in the absence of a Rule 

54(b) certification. See Porter v. Williams, 436 F.3d 917, 920 (8th Cir. 2006) 

(“Remanding the remaining state-law claims, after the federal claims are resolved . . . 
9 

makes [a] partial summary judgment a final order because there is nothing left for the 

district court to resolve.”). 

Indeed, in Hyde Park Co. v. Santa Fe City Council, this Court addressed almost 

the same argument now advanced by defendants: that the district court’s order disposing 

of the plaintiff’s federal claims and remanding the remaining state-law claims to state 

court is “not final under § 1291 because the state law claims which the district court 

remanded to state court remain unadjudicated.” 226 F.3d 1207, 1209 n.1 (10th Cir. 

2000). We rejected this argument, determining that “[f]ederal appeals courts have 

consistently held . . . that they have jurisdiction to review a district court order dismissing 

federal claims on the merits where the district court subsequently exercised its discretion 

under [28 U.S.C.] § 1367 to remand supplemental state law claims to state court.” Id. 

We further noted that a contrary conclusion would render a district court’s dismissal of 

federal claims in such a situation “effectively unreviewable.” Id. 

Although Hyde Park concerned a district court’s disposition of federal claims by 

motion to dismiss, the same rationale applies here, where the federal claims were 

resolved by summary judgment. See Porter, 436 F.3d at 920. Once the district court 

granted summary judgment as to all federal claims and some state-law claims, and 

remanded the remaining state-law claims to state court, there was nothing left for the 

court to adjudicate. Its decision was thus final and we therefore have jurisdiction to hear 

Ms. Koch’s appeal under 28 U.S.C. § 1291. 
10 

We also have jurisdiction to review the district court’s discretionary remand of 

Ms. Koch’s remaining state-law claims. Under 28 U.S.C. § 1447(c) and (d), an appellate 

court may not review a district court’s remand of state-law claims where the remand is 

based on lack of subject matter jurisdiction. But “[w]hen a district court remands claims 

to a state court after declining to exercise supplemental jurisdiction, the remand order is 

not based on a lack of subject-matter jurisdiction for purposes of §§ 1447(c) and (d).” 

Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 129 S. Ct. 1862, 1867 (2009). In this 

case, the district court expressly made clear that it was remanding based on its discretion 

not to exercise supplemental jurisdiction under Section 1367(c). Accordingly, appellate 

review of this determination is not barred by 28 U.S.C. § 1447(c) and (d). 

B. The Order Denying in Part Ms. Koch’s Motion to Continue 

Having concluded that we have jurisdiction over the final decision of the district 

court as set forth in its summary judgment order,2

 we must also conclude that we have 

jurisdiction to hear Ms. Koch’s appeal of the district court’s January 2008 order denying 

in part her motion to continue. The defendants argue that this order is not appealable 

 2

 It appears that the district court in this case did not enter a separate final 

judgment as required by Federal Rule of Civil Procedure 58. This Rule requires that, 

subject to stated exceptions not including summary judgment, “[e]very judgment and 

amended judgment must be set out in a separate document.” Fed. R. Civ. P. 58(a). 

However, “[i]f no question exists as to the finality of the district court’s decision, the 

absence of a Rule 58 judgment will not prohibit appellate review.” Burlington N. R.R. 

Co. v. Huddleston, 94 F.3d 1413, 1416 n.3 (10th Cir. 1996). Here, there is no question 

that the district court’s grant of summary judgment and remand of the remaining statelaw claims constituted a final decision. 
11 

because it relates “to discovery issues or pretrial deadlines in the underlying case,” and 

does not qualify as a final order under 28 U.S.C. § 1291 or Rule 54(b). (Mtn. to Dismiss, 

at 2, 4.) However, “once [a] district court enters a final order, its earlier interlocutory 

orders merge into the final judgment and are reviewable on appeal.” Long v. St. Paul 

Fire & Marine Ins. Co., 589 F.3d 1075, 1078 n.2 (10th Cir. 2009). This includes review 

on appeal from a grant of summary judgment of earlier orders concerning discovery 

matters. See Norton v. City of Marietta, 432 F.3d 1145, 1149, 1156 (10th Cir. 2005) 

(reviewing earlier order denying plaintiff’s motion to compel on appeal of district court’s 

grant of summary judgment in favor of defendants). Accordingly, this Court has 

jurisdiction to review the district court’s order denying in part Ms. Koch’s motion to 

continue.3

Because we have jurisdiction to hear Ms. Koch’s appeal of the two district court 

orders at issue, we deny the defendants’ motion to dismiss and proceed to the merits of 

Ms. Koch’s appeal. 

 3

 The defendants also challenge this Court’s jurisdiction with respect to the district 

court’s August 18, 2008 order denying Ms. Koch’s second motion to continue the 

discovery deadline. This apparently is based on Ms. Koch’s identification of this order in 

her notice of appeal. However, Ms. Koch does not raise the August 2008 order in her 

opening brief, and thus has waived any challenge to this order. See Bronson v. Swensen, 

500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider 

arguments that are not raised, or are inadequately presented, in an appellant’s opening 

brief.”). We therefore deny this aspect of the defendants’ motion. 
12 

III. DISCUSSION 

Ms. Koch argues that the district court erred in granting summary judgment in 

favor of Officer Beech on his qualified-immunity defense and in denying her motion to 

continue the trial. With respect to summary judgment, she contends that Officer Beech is 

not entitled to qualified immunity on either her false-arrest or excessive-force claims, and 

that the court’s decision to remand the remaining state-law claims against Del City 

should be reversed so that all claims can be heard together in federal court.4

 With respect 

to the motion to continue, she argues that the district court erred by not giving her more 

time to build evidentiary support for the damages aspect of her case. 

As discussed below, we conclude that the district court did not err in granting 

summary judgment in favor of Officer Beech on his qualified-immunity defense to Ms. 

Koch’s claims. Because neither of Ms. Koch’s federal claims survive and the district 

court did not abuse its discretion in remanding the remaining state-law claims, we affirm 

the district court’s summary judgment order. We further conclude that the district court 

did not abuse its discretion in denying Ms. Koch’s motion to continue, and therefore also 

affirm the district court’s January 2008 order. 

 4

 In her opening brief, Ms. Koch also argues that she has a malicious prosecution 

claim against Officer Beech. However, Ms. Koch did not assert this claim below. 

“Absent extraordinary circumstances, we will not consider arguments raised for the first 

time on appeal.” Turner v. Pub. Serv. Co., 563 F.3d 1136, 1143 (10th Cir. 2009). Ms. 

Koch points us to no extraordinary circumstances warranting consideration of this newly 

asserted claim on appeal, and therefore we do not consider it. 
13 

A. The District Court’s Grant of Summary Judgment in favor of Officer 

Beech 

1. Standard of Review 

We review the district court’s summary judgment order de novo. Weber v. GE 

Grp. Life Assur. Co., 541 F.3d 1002, 1010 (10th Cir. 2008). Summary judgment should 

be granted if there is no genuine issue as to any material fact and the movant is entitled to 

judgment as a matter of law. Fed. R. Civ. P. 56(c)(2) (2009); cf. Fed. R. Civ. P. 56(a) 

(effective Dec. 1, 2010). “Judgment as a matter of law is appropriate when the 

nonmoving party has failed to make a sufficient showing on an essential element of his or 

her case with respect to which he or she has the burden of proof.” Shero v. City of 

Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). “When applying this standard, we view 

the evidence and draw reasonable inferences therefrom in the light most favorable to the 

nonmoving party.” Fowler v. United States, 647 F.3d 1232, 1237 (10th Cir. 2011) 

(internal quotation marks omitted). 

However, “[o]ur review of summary judgment orders in the qualified immunity 

context differs from that applicable to review of other summary judgment decisions.” 

Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). “When a defendant 

asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to 

show that: (1) the defendant violated a constitutional right and (2) the constitutional right 

was clearly established.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). “If, 

and only if, the plaintiff meets this two-part test does a defendant then bear the traditional 
14 

burden of the movant for summary judgment—showing that there are no genuine issues 

of material fact and that he or she is entitled to judgment as a matter of law.” Clark v. 

Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008) (internal quotation marks omitted). 

In addition, although this Court must construe the facts in the light most favorable 

to the plaintiff as the nonmoving party, “a plaintiff’s version of the facts must find 

support in the record.” Thomson, 584 F.3d at 1312. “[M]ore specifically, [a]s with any 

motion for summary judgment, [w]hen opposing parties tell two different stories, one of 

which is blatantly contradicted by the record, so that no reasonable jury could believe it, a 

court should not adopt that version of the facts.” Id. (internal quotation marks omitted). 

2. Ms. Koch’s claim for false arrest under the Fourth Amendment 

Ms. Koch claims that Officer Beech violated her rights under the Fourth 

Amendment when he arrested her for obstruction. Specifically, she contends that Officer 

Beech had no reason to believe that she knew where Ms. Lance was located, and thus 

could not have had probable cause to believe that she committed obstruction by not 

conveying this information to him. She further argues that Officer Beech is not entitled 

to qualified immunity on this claim because at the time of her arrest, no reasonable 

officer could have believed that she was subject to arrest for obstruction for failing to 

disclose where Ms. Lance was located. As discussed below, we disagree. At the time of 

Ms. Koch’s arrest, it was not clearly established that, under the circumstances, she had a 

right to refuse to answer Officer Beech’s questions. Thus, a reasonable officer could 

believe that her refusal to answer constituted obstruction. This is sufficient to establish 
15 

Officer Beech’s qualified-immunity defense as a matter of law, and therefore the district 

court did not err in granting summary judgment in his favor. 

In applying the Fourth Amendment’s protections against unreasonable searches 

and seizures, the Supreme Court has recognized three types of police-citizen encounters: 

consensual encounters, investigative detentions, and arrests. United States v. White, 584 

F.3d 935, 944-45 (10th Cir. 2009). Because an arrest is “the most intrusive of Fourth 

Amendment seizures,” an arrest is “reasonable only if supported by probable cause.” Id. 

at 945 (internal quotation marks omitted). Accordingly, “[i]t has long been established 

that an arrest . . . without probable cause that a crime has been committed violates the 

Fourth Amendment.” Shroff v. Spellman, 604 F.3d 1179, 1188 (10th Cir. 2010). 

“Probable cause exists where the facts and circumstances within the arresting 

officer’s knowledge and of which they had reasonably trustworthy information are 

sufficient in themselves to warrant a person of reasonable caution to have the belief that 

an offense has been or is being committed by the person to be arrested.” United States v. 

Alonso, 790 F.2d 1489, 1496 (10th Cir. 1986). This is an objective standard, and thus 

“[t]he subjective belief of an individual officer as to whether there was probable cause for 

making an arrest is not dispositive.” United States v. Valenzuela, 365 F.3d 892, 896 

(10th Cir. 2004). Whether a reasonable officer would believe that there was probable 

cause to arrest in a given situation is based on the totality of the circumstances. Id. at 

897. 
16 

In this case, Officer Beech arrested Ms. Koch for violation of Section 540 of 

Oklahoma Statutes Title 21, which provides that “[e]very person who willfully delays or 

obstructs any public officer in the discharge or attempt to discharge any duty of his 

office, is guilty of a misdemeanor.” Specifically, Officer Beech contends that Ms. Koch 

obstructed him by refusing to answer questions regarding Ms. Lance’s whereabouts. (See 

Aple. Br. at 22 (“Officer Beech arrested Vicki Koch because she refused to tell Officer 

Beech where Gladys Lance was located.”).)5

 

 5

 In his response brief, Officer Beech references other potential bases for his 

conclusion that Ms. Koch was committing obstruction. In particular, he cites Ms. Koch’s 

statements to him that he should get off of her property and that he should talk to her 

attorney, which he equates with an attempt to send him on “a fool’s errand.” (See Aple. 

Br. at 18 (“[Ms. Koch] was arrested for obstruction when she refused to answer questions 

and ordered Officer Beech off her property.”); id. at 23 (“Koch told Officer Beech to 

leave her property and to go talk to attorney Joyce Good, a person that Koch knew did 

not know where Gladys Lance was located. . . . Koch’s decision to order Officer Beech 

off of her property on a fool’s errand was a clear obstruction of Officer’s Beech’s duty to 

locate Ms. Lance.”).) We do not believe that a reasonable officer could have viewed 

either of these statements as constituting obstruction. 

First, Officer Beech does not provide any basis for concluding that Ms. Koch’s 

statement that he should leave her property could amount to obstruction. He does not 

argue that he had a warrant, or that exigent circumstances existed that would authorize 

his presence on Ms. Koch’s property without her consent, or that he conveyed either of 

these things to Ms. Koch. Second, Ms. Koch’s statement that Officer Beech should talk 

to her attorney cannot form a basis for probable cause in this case. Even if Ms. Koch 

purposefully attempted to send Officer Beech on a “fool’s errand” by directing him to 

Ms. Good, there was no way for Officer Beech to know that at the time, as he had not 

spoken to anyone other than his shift supervisor about the matter before going to Ms. 

Koch’s residence. In other words, Officer Beech could not have known whether or not 

Ms. Good knew of Ms. Lance’s whereabouts, and thus had no reason to conclude that 

Ms. Koch’s statement was evasive. 

Although we look to the totality of the circumstances in assessing whether an 

Continued . . . 
17 

As an initial matter, we conclude on this record that Officer Beech could 

reasonably believe that Ms. Koch had information concerning Ms. Lance’s whereabouts. 

“Police officers are entitled to rely upon information relayed to them by other officers in 

determining whether there is reasonable suspicion to justify an investigative detention or 

probable cause to arrest,” as long as such reliance is “objectively reasonable.” Oliver v. 

Woods, 209 F.3d 1179, 1190-91 (10th Cir. 2000). Here, it is undisputed that Officer 

Beech was told at shift lineup that a “pick-up order” was in place for Ms. Lance, and that 

Ms. Lance was believed to be residing at Ms. Koch’s residence. It is further undisputed 

that Officer Beech was charged with going to Ms. Koch’s residence to check on Ms. 

Lance’s welfare. Under these circumstances, it was reasonable for Officer Beech to 

believe that Ms. Koch had information about where to find Ms. Lance. 

Ms. Koch argues that Officer Beech’s failure to do additional investigation before 

coming to her residence forecloses any argument that he reasonably believed Ms. Koch 

knew where Ms. Lance was located. It is true that “police officers may not ignore easily 

accessible evidence and thereby delegate their duty to investigate and make an 

independent probable cause determination based on that investigation.” Baptiste v. J. C. 

Penney Co., 147 F.3d 1252, 1259 (10th Cir. 1998). However, Ms. Koch has not pointed 

______________________________________ 

officer has probable cause to arrest, we conclude that neither of these statements can 

establish probable cause to arrest Ms. Koch for obstruction in this case. We thus only 

consider these statements to the extent they further reflect Ms. Koch’s refusal to answer 

Officer Beech’s question regarding Ms. Lance’s whereabouts. 
18 

to any “easily accessible” additional evidence that would have further informed Officer 

Beech as to Ms. Koch’s knowledge of Ms. Lance’s whereabouts, or that would have 

altered his understanding of the situation. Indeed, there is nothing to indicate that if 

Officer Beech had consulted the Order or called DHS or Adult Protective Services, he 

would have discovered anything materially different than what he was informed by his 

shift supervisor. Thus, we conclude that Officer Beech’s belief that Ms. Koch had 

information about Ms. Lance’s whereabouts was reasonable. 

We further view as undisputed the fact that Ms. Koch did not convey her 

knowledge of Ms. Lance’s whereabouts until after Officer Beech arrested Ms. Koch. 

Although Ms. Koch contends otherwise, this is directly contradicted by her deposition 

testimony. (See Aplt. App’x at 268 (“I said, I don’t know any more than Gladys is in a 

nursing home, but . . . before I could even tell him all that he starts this, doing this thing 

with my arms.” (emphasis added)); id. at 269 (“I thought if I could keep his mind off of 

breaking, that twisting motion, I could get him to get his mind off of hurting me. 

Because that’s when I said, you don’t have to hurt me to make me tell you where she is. 

I’ll tell you. But there was this, he wanted to physically hurt me. He wanted to do that. 

So that’s why I wasn’t able to tell him.” (emphasis added)).) We thus conclude that Ms. 

Koch’s contrary claims as to when she told Officer Beech about Ms. Lance’s 

whereabouts are contradicted by the record, and therefore do not consider them. See 

Thomson, 584 F.3d at 1312. 
19 

This does not resolve the inquiry, however. Even if it was reasonable for Officer 

Beech to believe that Ms. Koch had knowledge of Ms. Lance’s whereabouts, it is less 

clear whether Officer Beech could reasonably believe that Ms. Koch had the legal 

obligation to convey this information to him. If she did have such an obligation, then 

Officer Beech could conclude that her failure to respond to his inquiry constituted 

obstruction, and the fact that she committed this offense in his presence would give rise 

to sufficient probable cause to arrest her. See Atwater v. City of Lago Vista, 532 U.S. 

318, 354 (2001) (“If an officer has probable cause to believe that an individual has 

committed even a very minor criminal offense in his presence, he may, without violating 

the Fourth Amendment, arrest the offender.”). Conversely, if Ms. Koch did not have an 

obligation to respond to Officer Beech’s questions, then he could not reasonably believe 

that her refusal to answer constituted obstruction, and thus would not have had probable 

cause to arrest her. 

In the qualified immunity/summary judgment context, however, a plaintiff must 

show both that that the defendant violated a constitutional right and that the right was 

clearly established. Martinez, 563 F.3d at 1088. Thus, in the context of an unlawful 

arrest, not only must the plaintiff demonstrate that the officer arrested her without 

probable cause (that is, that he violated a constitutional right), but also that it would have 

been clear to a reasonable officer that probable cause was lacking under the 

circumstances (that is, that the right was clearly established in the specific situation). See 

Bowling v. Rector, 584 F.3d 956, 964 (10th Cir. 2009) (“Our inquiry into whether a 
20 

constitutional right was clearly established must be undertaken in light of the specific 

context of the case, not as a broad general proposition.” (internal quotation marks 

omitted)). Accordingly, “[w]hen a warrantless arrest is the subject of a § 1983 action, the 

arresting officer is entitled to qualified immunity if a reasonable officer could have 

believed that probable cause existed to make the arrest.” Robertson v. Las Animas Cnty. 

Sheriff’s Dep’t, 500 F.3d 1185, 1191 (10th Cir. 2007). Under this framework, sometimes 

referred to as “arguable probable cause,” “[e]ven law enforcement officials who 

reasonably but mistakenly conclude that probable cause is present are entitled to 

immunity.” Cortez v. McCauley, 478 F.3d 1108, 1120 & n.15 (10th Cir. 2007) (en banc). 

For the purposes of our qualified immunity inquiry, therefore, the relevant 

question is this: Could a reasonable officer in Officer Beech’s position have believed that 

Ms. Koch had a legal obligation to answer questions about Ms. Lance’s whereabouts, 

such that refusal to answer would constitute obstruction? Put another way, was it clearly 

established that Ms. Koch had a right not to answer these questions? 

The district court concluded that pursuant to the Order, “Officer Beech had lawful 

authority to investigate the whereabouts of Ms. Lance and to require Plaintiff to answer 

questions about her location.” (Aplt. App’x at 382.) On appeal, the parties spend much 

of their briefs debating the validity of the Order and Officer Beech’s knowledge of the 

Order before he engaged Ms. Koch. However, these issues are largely irrelevant to the 

question before us. First, it is undisputed that Officer Beech does not recall if he even 

saw the Order before going to Ms. Koch’s residence. Thus, the contents of the Order 
21 

cannot inform the probable-cause analysis. Second, if Ms. Koch had a clearly established 

constitutional right not to respond to Officer Beech’s questions, the Order cannot itself 

alter this landscape. Instead, to resolve whether Ms. Koch had a right to refuse to 

respond to Officer Beech’s questions, we must determine the nature of her encounter with 

Officer Beech. 

Ms. Koch contends that at the time Officer Beech asked her about Ms. Lance’s 

whereabouts, their encounter had become an investigative detention under Terry v. Ohio, 

392 U.S. 1 (1968). We agree. Under Terry, “a police officer may in appropriate 

circumstances and in an appropriate manner approach a person for purposes of 

investigating possibly criminal behavior even though there is no probable cause to make 

an arrest.” 392 U.S. at 22. In this case, Officer Beech was charged with going to Ms. 

Koch’s residence to investigate Ms. Lance’s welfare, and based on what he was told 

during lineup could reasonably believe that Ms. Koch was potentially concealing Ms. 

Lance’s whereabouts. Moreover, his conduct during the encounter evidenced something 

more than a consensual discussion; he specifically engaged Ms. Koch to check on Ms. 

Lance’s welfare and to try to determine her whereabouts, and indicated to Ms. Koch that 

she was not free to walk away. Under these circumstances, we conclude that Officer 

Beech’s interaction with Ms. Koch constituted a Terry stop. 

Having decided that the encounter at issue constituted a Terry stop, the question 

becomes whether, as a matter of law, an individual subject to a Terry stop has the right to 

refuse to answer an officer’s questions. In our view, this question not only implicates the 
22 

Fourth Amendment’s right against unreasonable seizures, but potentially also the First 

Amendment’s right of free speech and the Fifth Amendment’s right against selfincrimination. Specifically, if the First Amendment’s right not to speak or the Fifth 

Amendment’s right not to be a witness against oneself apply in the context of a Terry 

stop, then this seems to compel the conclusion that a Terry detainee cannot, under the 

Fourth Amendment, be required to answer an officer’s questions.6 We therefore address 

the pertinent rights under each of these Amendments in turn. 

a) The Fourth Amendment 

Before 2004, it was an open question whether an individual may refuse to answer 

an officer’s request for identification—or other questions—during a Terry stop. See 

Oliver, 209 F.3d at 1190 (stating that “the Supreme Court [has] expressly declined to 

address whether an individual has the right to refuse to present identification during a 

lawful investigative detention” and citing the Seventh Circuit’s conclusion that “it is an 

 6

 Ms. Koch has alleged neither a cause of action based on the First Amendment’s 

right of free speech nor a cause of action based on the Fifth Amendment’s right against 

self-incrimination. She also does not raise these arguments on appeal. Nonetheless, by 

asserting her rights under the Fourth Amendment—i.e., that her arrest was 

unconstitutional because it was not based on probable cause—she has sufficiently 

invoked these issues. As discussed above, in order to determine whether a reasonable 

officer could believe that Ms. Koch’s refusal to answer questions constituted obstruction, 

we must resolve the issue of whether Ms. Koch was required to answer the officer’s 

questions. If Ms. Koch had a right under the First or Fifth Amendments not to answer 

these questions, then her refusal to answer could not constitute obstruction. In that case, 

her arrest was without probable cause and therefore violated her Fourth Amendment 

rights. We therefore address these issues only to the extent they inform the Fourth 

Amendment inquiry. 
23 

open question whether citizens can refuse to respond to questions posed during lawful 

investigative stops”); Tom v. Voida, 963 F.2d 952, 959 & n.8 (7th Cir. 1992) (noting that 

the Supreme Court has never resolved the question of whether “citizens have a right to 

refuse to respond to questions posed during investigative stops”).7

 Then, in Hiibel v. 

Sixth Judicial District Court, the Supreme Court held that “[a] state law requiring a 

suspect to disclose his name in the course of a valid Terry stop is consistent with [the] 

Fourth Amendment.” 542 U.S. 177, 188 (2004). However, the Court did not address 

whether refusal to answer other questions during a Terry stop can give rise to probable 

cause to arrest. While the Court noted precedent suggesting that a detainee may refuse to 

answer questions, see Terry, 392 U.S. at 34 (White, J., concurring) (stating that while an 

individual may be asked pertinent questions during an investigative detention, “the 

 7

 As the court noted in Tom, “[a]nswering this question in either the affirmative or 

the negative poses problems”: 

If citizens do have a right to refuse to answer, then the Terry stop is a rather 

weak law enforcement device, useful only against the suspect who does not 

make any attempt to assert his or her rights. But if citizens do not have a 

right to refuse to answer, then the Terry stop becomes an extraordinarily 

powerful law enforcement device, for it permits law enforcement officers to 

bootstrap their reasonable suspicion of criminal activity justifying an 

investigative stop into probable cause justifying a search or an arrest based 

solely on the suspect’s refusal to respond to the investigative stop. Citizens 

are thus placed in a dilemma: individuals who chose to remain silent would 

be forced to relinquish their right not to be searched . . . , while those who 

chose not to be searched would be forced to forgo their constitutional right 

to remain silent. 

963 F.2d at 959 (internal quotation marks omitted). 
24 

person stopped is not obliged to answer, answers may not be compelled, and refusal to 

answer furnishes no basis for an arrest”); Berkemer v. McCarty, 468 U.S. 420, 439 

(1984) (stating that while an officer may ask a Terry detainee “a moderate number of 

questions to determine his identity and to try to obtain information confirming or 

dispelling the officer’s suspicions,” “the detainee is not obliged to respond”), the Court 

found these authorities not to be controlling. Hiibel, 542 U.S. at 187. In the Court’s 

view, the language from Terry and Berkemer merely “recognize[d] that the Fourth 

Amendment does not impose obligations on the citizen but instead provides rights against 

the government,” and thus “the Fourth Amendment itself cannot require a suspect to 

answer questions.” Id. Accordingly, the Court declined to view “the dicta in Berkemer 

or Justice White’s concurrence in Terry as answering the question whether a State can 

compel a suspect to disclose his name during a Terry stop.” Id. 

Thus, although Hiibel answered the question of whether an individual may be 

required to provide identification during the course of a Terry stop, the question of 

whether an individual may be required to answer other questions remains unsettled. See 

Anderer v. Jones, 385 F.3d 1043, 1076 (7th Cir. 2004) (Coffey, J., dissenting ) (citing 

Hiibel in concluding that “in the context of a lawful Terry stop . . . the question of 

whether an investigating officer may detain an individual for refusing to answer a 

potentially incriminating inquiry, or whether he may use such refusal to elevate his mere 

suspicion to the level of probable cause, is an issue neither the U.S. Supreme Court nor 

this Court has resolved to date” (emphasis omitted)). Indeed, Ms. Koch has pointed to no 
25 

authority—nor could we find any—clearly establishing a right under the Fourth 

Amendment to refuse to answer an officer’s questions during a Terry stop. 

b) The First Amendment 

The First Amendment not only protects an individual’s right to speak, it also 

protects an individual’s right not to speak. See Wooley v. Maynard, 430 U.S. 705, 714 

(1977) (“[T]he right of freedom of thought protected by the First Amendment against 

state action includes both the right to speak freely and the right to refrain from speaking 

at all.”). However, it is not clearly established whether this right applies in the context of 

questioning during a Terry stop. For example, in Albright v. Rodriguez, an officer 

arrested the plaintiff when the plaintiff refused to produce identification in response to 

officer’s requests. 51 F.3d 1531, 1533 (10th Cir. 1995). The plaintiff sued under § 1983, 

contending, inter alia, that the officer’s actions violated his First Amendment right not to 

speak. Id. at 1534. The district court denied the defendant’s motion for summary 

judgment based on qualified immunity, but we reversed. Id. at 1534, 1540. We 

concluded that because we could find no case “recognizing a First Amendment right to 

refuse to identify one’s self to a police officer during a lawful investigative stop,” any 

such right under the First Amendment was not clearly established and thus the officer 

was entitled to qualified immunity. Id. at 1539-40. 

Turning back to this case, we again have found no authority recognizing a First 

Amendment right to refuse to answer questions during a Terry stop. In fact, several 

courts have declined to recognize a First Amendment right not to speak in analogous 
26 

contexts. See McFadyen v. Duke Univ., 786 F.Supp. 2d 887, 949 (M.D.N.C. 2011) 

(noting the lack of authority applying “the First Amendment protection against 

government-compelled ideological or political speech into the context of police 

interviews” and concluding that as of 2006 “there was no clearly established First 

Amendment right not to speak to police officers”); Garcia v. Jaramillo, No. CIV-05-1212, 

2006 U.S. Dist. LEXIS 95389, at *51 (D.N.M. Nov. 27, 2006) (“It has been clearly 

established that arresting someone for failing to present valid identification pursuant to an 

unlawful seizure violates the Fourth Amendment; it has not been clearly established that 

such violates the First Amendment.”). Thus, at the time of Ms. Koch’s arrest, it was not 

clearly established that an individual has a First Amendment right to refuse to answer an 

officer’s questions during a Terry stop. 

c) The Fifth Amendment8

 8

 Ms. Koch does not contend that she verbally invoked her Fifth Amendment right 

against self-incrimination to Officer Beech before he arrested her. Because this right “is 

not a self-executing mechanism[,] it can be affirmatively waived, or lost by not asserting 

it in a timely fashion.” Maness v. Meyers, 419 U.S. 449, 466 (1975). However, “this 

rule is subject to exception when some coercive factor prevents an individual from 

claiming the privilege or impairs his choice to remain silent.” Roberts v. United States, 

445 U.S. 552, 560 n.6 (1980). In this case, it is undisputed that Officer Beech 

affirmatively told Ms. Koch that if she did not tell him where Ms. Lance was located he 

would arrest her for obstruction. Other facts surrounding the arrest are disputed, and thus 

we do not know, for example, how much time elapsed between Officer Beech’s request 

for Ms. Lance’s whereabouts and the arrest, or whether Officer Beech presented his 

questions in an overly coercive manner. Viewed in the light most favorable to Ms. Koch, 

it is possible that Officer Beech’s conduct made it impossible or otherwise impaired Ms. 

Koch’s ability to invoke the privilege. Thus, we do not conclude that Ms. Koch’s failure 

Continued . . . 
27 

The Fifth Amendment provides that no person “shall be compelled in any criminal 

case to be a witness against himself.” U.S. Const. amend. V. In Chavez v. Martinez, the 

Court addressed whether this right is violated where no criminal case is brought against 

the compelled individual. 538 U.S. 760 (2003). The plaintiff in Chavez was arrested 

after a scuffle with the police during which the plaintiff was shot several times. Id. at 

764. The plaintiff was then taken to the hospital, where the defendant police officer 

allegedly subjected him to coercive interrogation while the plaintiff was receiving 

medical treatment. Id. Although the plaintiff was not charged with a crime, he brought a 

§ 1983 claim against the defendant officer, alleging, inter alia, that the officer’s 

interrogation violated the plaintiff’s Fifth Amendment right against self-incrimination. 

Id. at 764-65. The Ninth Circuit affirmed the district court’s grant of summary judgment 

in favor of the plaintiff on the defendant’s qualified-immunity defense, but the Supreme 

Court reversed. Id. at 765-66, 776. A four-member plurality of the Court held that a 

violation of the Fifth Amendment right against self-incrimination “occurs only if one has 

been compelled to be a witness against himself in a criminal case.” Id. at 770.9

 

______________________________________ 

to invoke the privilege automatically waived an argument against a finding of probable 

cause based on the Fifth Amendment. 

9

 Although Justices Souter and Breyer did not join the plurality, they agreed that 

the Fifth Amendment “focuses on courtroom use of a criminal defendant’s compelled, 

self-incriminating testimony, and the core of the guarantee against compelled selfincrimination is the exclusion of any such evidence.” 538 U.S. at 777 (Souter, J., 

concurring). 
28 

Accordingly, because the plaintiff “was never prosecuted for a crime, let alone compelled 

to be a witness against himself in a criminal case,” the Court concluded that the defendant 

officer was entitled to qualified immunity on the plaintiff’s Fifth Amendment claim. Id. 

at 766, 776. 

However, the plurality in Chavez explicitly declined to decide “the precise 

moment when a ‘criminal case’ commences” for the purposes of the Fifth Amendment 

right against self-incrimination. Id. at 766-67. Thus, it is unclear in this case whether 

Officer Beech’s conduct potentially violated Ms. Koch’s Fifth Amendment rights, where 

Ms. Koch’s refusal to answer Officer Beech’s questions was used as a basis to arrest her 

for obstruction, but she ultimately was not prosecuted on this charge. 

At oral argument, Ms. Koch repeatedly cited our decision in Pallottino v. City of 

Rio Rancho, 31 F.3d 1023 (10th Cir. 1994), to support her contention that her arrest 

violated the Fifth Amendment. In Pallottino, the plaintiff was arrested after he refused to 

give his name and address in response to officers’ requests. Id. at 1025. He sued under 

§ 1983, alleging that his arrest violated his Fifth Amendment “absolute right to remain 

silent.” Id. We affirmed the district court’s grant of summary judgment in favor of the 

defendants on qualified immunity grounds, concluding that there was “no clearly 

established right, under the Fifth Amendment, to ignore police requests at the scene of an 

investigation for a witness’s name and address.” Id. at 1026. While we noted precedent 

in which we “recognized a Fifth Amendment right to remain silent may be triggered 

during a Terry stop,” we further noted that “we have narrowly limited that event to pre-
29 

arrest custodial interrogations where incriminating questions are asked.” Id. Here, Ms. 

Koch does not allege that her pre-arrest encounter with Officer Beech constituted a 

custodial interrogation, and, in any event, we did not recognize in Pallottino a wellestablished right to refuse to answer questions during a Terry stop. Thus, Pallottino does 

not help Ms. Koch. 

In addition, some cases suggest that use of compelled statements as a basis to 

arrest by itself does not run afoul of the Fifth Amendment. See Hanson v. Dane Cnty., 

608 F.3d 335, 339-40 (7th Cir. 2010) (finding no violation of plaintiff’s Fifth 

Amendment rights where officers arrested plaintiff after interrogation without Miranda 

warnings, because “an arrest does not entail the use of evidence in a criminal prosecution; 

the arrest precedes the prosecution”); Burrell v. Virginia, 395 F.3d 508, 510-11, 513-14 

(4th Cir. 2005) (finding no violation of the Fifth Amendment where plaintiff, who was 

arrested for obstruction after he refused to provide proof of automobile insurance in 

response to officers’ request, did not “allege any trial action that violated his Fifth 

Amendment rights”); see also Chavez, 538 U.S. at 766 (“In our view, a ‘criminal case’ at 

the very least requires the initiation of legal proceedings.”). 

Accordingly, at the time of Ms. Koch’s arrest, it was not clearly established that an 

individual has a Fifth Amendment right to refuse to answer an officer’s questions during 

a Terry stop. 
30 

d) Conclusion as to Ms. Koch’s false-arrest claim 

“In determining whether a right was clearly established, we look for Supreme 

Court or Tenth Circuit precedent on point or clearly established weight of authority from 

other courts finding the law to be as the plaintiff maintains.” Lundstrom v. Romero, 616 

F.3d 1108, 1119 (10th Cir. 2010). As discussed above, at the time of Ms. Koch’s arrest, 

there was neither Supreme Court nor Tenth Circuit precedent, nor clearly established 

weight of authority from other courts, recognizing a right to refuse to respond to an 

officer’s questions during a Terry stop. A reasonable officer could therefore believe that, 

under the circumstances of this case, Ms. Koch was required to answer questions 

regarding Ms. Lance’s whereabouts, and that her refusal to do so constituted a willful 

delay or obstruction of an officer’s duty. Accordingly, the district court did not err in 

granting summary judgment in favor of Officer Beech on his qualified-immunity defense 

to Ms. Koch’s false-arrest claim. 

We emphasize that our conclusion is specific to the facts of this case. We hold 

only that in this case, a reasonable officer could believe that Ms. Koch had information 

regarding Ms. Lance’s location, that under the circumstances Ms. Koch was required to 

convey this information, and thus that her refusal to do so constituted obstruction. 

Summary judgment was therefore appropriate. 

3. Ms. Koch’s excessive-force claim under the Fourth Amendment 

Ms. Koch argues that the district court erred in granting summary judgment in 

favor of Officer Beech on his qualified-immunity defense to her excessive-force claim. 
31 

We conclude that the district court did not err because Ms. Koch has not sufficiently 

shown that she was injured by Officer Beech’s actions. 

“Excessive force claims are governed by the Fourth Amendment’s ‘objective 

reasonableness’ standard.” Cavanaugh v. Woods Cross City, 625 F.3d 661, 664 (10th 

Cir. 2010). Under this standard, “the question is whether the officers’ actions are 

‘objectively reasonable’ in light of the facts and circumstances confronting them, without 

regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 

(1989). While recognizing that this test “is not capable of precise definition or 

mechanical application,” the Court in Graham set forth three non-exhaustive factors for 

determining whether the use of force in a particular case was reasonable: (1) “the severity 

of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of 

the officers or others,” and (3) “whether he is actively resisting arrest or attempting to 

evade arrest by flight.” Id. at 396 (internal quotation marks omitted). 

In this case, the first two Graham factors weigh in favor of Ms. Koch. The crime 

for which she was arrested, obstruction, is only a misdemeanor, see 21 Okla. Stat. § 540, 

and Officer Beech does not argue that at the time of her arrest Ms. Koch presented an 

immediate threat to himself or others. However, the third factor weighs somewhat in 

favor of Officer Beech, as Ms. Koch has not adequately disputed that she resisted arrest. 

In his motion for summary judgment, Officer Beech argued that Ms. Koch resisted 

arrest during their encounter, although he did not cite any evidence as to this claim other 

than Ms. Koch’s statement during her deposition that she “was moving over here and 
32 

[Officer Beech] kept wringing my hands." (Aplt. App’x at 224, 235, 267.) In response, 

Ms. Koch merely stated that she disputed this fact, without offering any specific evidence 

in support. Although in her reply brief on appeal Ms. Koch points to her deposition 

testimony in which she claims she did not resist arrest, Ms. Koch did not present this 

evidence in response to Officer Beech’s summary judgment motion. We therefore 

consider it as undisputed that Ms. Koch resisted arrest. See Celotex Corp. v. Catrett, 477 

U.S. 317, 324 (1986) (stating where nonmoving party bears the burden of proof at trial, 

Rule 56 requires the nonmoving party to go beyond the pleadings and designate specific 

facts showing a genuine issue for trial). Thus, application of the Graham factors is 

inconclusive, although it leans towards Ms. Koch. 

That does not end our inquiry, however. In cases in which “the handcuffing is 

permissible yet the manner of handcuffing may render the application of force 

excessive,” “the Graham factors are less helpful in evaluating the degree of force 

applied.” Fisher v. City of Las Cruces, 584 F.3d 888, 896 (10th Cir. 2009). In these 

cases, then, “an examination of the resulting injury supplements our inquiry.” Id. at 897; 

see also id. at 902 (Gorsuch, J., concurring) (noting that we examine the resulting injury 

in tight-handcuffing cases in order to “fill a small analytical void that Graham left open”). 

And in order to succeed on such a claim, a plaintiff must show “some actual injury that is 

not de minimis, be it physical or emotional.” Cortez, 478 F.3d at 1129; see also Fisher, 

584 F.3d at 899 (concluding that this standard applies “when the excessive force claim 

involves the officers’ actions in applying handcuffs—a manner of handcuffing claim”). 
33 

In this case, Ms. Koch’s excessive-force claim concerns the manner in which 

Officer Beech applied handcuffs on her during the arrest. For example, in her complaint 

she alleges that Officer Beech “placed her in handcuffs too tight and caused injury to 

[her] wrists.” (Aplt. App’x at 285.) Consistent with this allegation, in opposing Officer 

Beech’s motion for summary judgment, she submitted evidence of injury as to her arms 

and wrists. (See Aplt. App’x at 31 (citing as evidence of injury hospital reports and 

photographs); id.at 149 (hospital report classifying complaint as “some sores on her 

wrists and arms” and stating that there were “[n]o other associated symptoms or 

modifying factors”); id. at 203-05 (photographs of Ms. Koch’s arms and wrists).) 10 

Thus, to succeed on her claim, Ms. Koch must show an actual injury that is not de 

minimis. She has not done so. 

As cited above, the only evidence Ms. Koch submitted to support her claims of 

injury were hospital reports and photographs of her arms and wrists. The earliest 

emergency room report, dated four days after her arrest, stated that her wrist and arm 

injuries “appear[ed] to be just superficial abrasions.” (Id. at 151.) And the second 

emergency room report, dated October 14, 2005, stated that Ms. Koch was “concerned 

 10 In her opening brief, Ms. Koch alleges that Officer Beech also placed his knee 

in her back while he placed her in handcuffs. Even if we considered this action to be 

distinct from Officer Beech’s application of handcuffs, Ms. Koch presented inadequate 

evidence of any injury stemming from this action. Thus, this allegation does not assist 

her excessive-force claim. See Fisher, 584 F.3d at 898 (noting that this Court requires a 

showing of “actual harm” in all excessive-force claims). 
34 

that she has a court appearance having to do with this injury today,” and thus she was at 

the emergency room “because she need[ed] a note saying she has radial nerve damage.” 

(Id. at 160.) The report noted that Ms. Koch had “no other injuries or concerns” other 

than complaints of numbness in her wrist and forearm, and indicated that the treating 

physician referred Ms. Koch to a neurologist for these complaints. (Id.) Ms. Koch, 

however, does not submit any evidence that she saw this neurologist or that any 

neurological injury was detected. 

 This evidence indicates on its face that Ms. Koch’s injuries were de minimis. 

Ms. Koch therefore cannot make out an excessive-force claim, and thus cannot show that 

Officer Beech violated a constitutional right. We therefore do not need to reach the 

“clearly established” prong of qualified immunity to conclude that the district court 

correctly granted summary judgment in favor of Officer Beech. 

4. The district court’s remand of Ms. Koch’s state-law claims 

Ms. Koch argues that because this Court should reverse the grant of summary 

judgment in favor of Officer Beech, the Court should also reverse the district court’s 

remand of the state-law claims against Del City so that all claims are heard in the same 

court. As discussed above, the district court did not err in granting Beech’s motion for 

summary judgment, and thus there is no reason to disturb the district court’s decision to 

remand. 

Moreover, even if we were to review the district court’s decision independently, 

we see no error. “We review a denial of supplemental jurisdiction for abuse of 
35 

discretion.” Nielander v. Bd. of County Comm’rs, 582 F.3d 1155, 1172 (10th Cir. 2009). 

Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental 

jurisdiction if “the district court has dismissed all claims over which it has original 

jurisdiction.” “When all federal claims have been dismissed, the court may, and usually 

should, decline to exercise jurisdiction over any remaining state claims.” Smith v. City 

of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998). Here, after the 

district court granted summary judgment, the only remaining claims were Ms. Koch’s 

state-law claims against Del City. The court did not abuse its discretion by declining to 

exercise supplemental jurisdiction over these claims. 

B. The District Court’s Order Denying in Part Ms. Koch’s Motion to 

Continue 

Ms. Koch also appeals the district court’s January 17, 2008 order denying in part 

her motion to continue the trial and associated pretrial deadlines. “We review the district 

court’s decision to deny a continuance for abuse of discretion and do not reverse unless 

we conclude that the denial was arbitrary or unreasonable and materially prejudiced the 

appellant.” United States v. West, 828 F.2d 1468, 1469 (10th Cir. 1987). We conclude 

that the district court did not abuse its discretion in denying in part Ms. Koch’s motion to 

continue. 

In her motion, Ms. Koch argued that the trial and pretrial dates should be 

continued for various personal and medical reasons, including so that she could continue 

to see doctors regarding her alleged injury. Ms. Koch also requested that the discovery 
36 

deadline be extended so that she could depose Officer Beech’s shift supervisor on the day 

of her arrest. The district court granted Ms. Koch’s motion in part, extending the 

discovery deadline for thirty days for the limited purpose of allowing Ms. Koch to depose 

the shift supervisor. The court also provided that it would consider another request for a 

continuance if warranted based on this deposition. However, the court denied Ms. 

Koch’s requests to otherwise continue the pretrial deadlines. The court noted that at the 

time of Ms. Koch’s motion to continue, all pretrial deadlines had been met and all pretrial 

filings had been made, including the parties’ final pretrial report and Ms. Koch’s motion 

in limine, proposed voir dire, and proposed jury instructions. The court concluded that 

Ms. Koch had failed to show good cause for discovery concerning new matters at that 

stage of the litigation. 

On appeal, Ms. Koch argues that the district court abused its discretion by not 

granting her motion in full because (1) she was still receiving medical treatment at the 

time and she needed to finish her treatment in order to show her damages with reasonable 

certainty; (2) the case had only been pending approximately nine months at the time she 

filed her motion; (3) only one other continuance had been granted, at the request of all 

parties; and (4) the defendants would have suffered no inconvenience if the continuance 

had been granted. We agree with the district court that Ms. Koch’s unsupported 

assertions regarding medical treatment contained in her motion did not establish good 

cause for additional discovery at such a late stage of the litigation. Moreover, we see no 

prejudice to Ms. Koch where at the time of her motion she had well over two years after 
37 

her injury to develop the damages aspect of her case. Under these circumstances, the 

district court did not abuse its discretion in denying the remainder of Ms. Koch’s motion 

to continue. 

CONCLUSION 

For the reasons discussed above, we AFFIRM the district court’s order granting 

summary judgment in favor of Officer Beech and its order denying in part Ms. Koch’s 

motion to continue.